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5 signs a POA needs legal advice

I have to start this blog by correcting a common misconception - a "power of attorney" is a document. The person who has been appointed by the power of attorney (or "POA" for short) to act on someone's behalf is actually called the "attorney".  Ok, now that's out of the way and we can begin.

You may have come across this blog because you have been appointed as someone's attorney for property and/or personal care. We strongly suggest that you seek legal advice about your duties since (1) there are many ways that well-intentioned attorneys make errors that lead to serious accusations and even lawsuits, (2) you have legal duties that dictate how you must make decisions and keep records, and (3) if you accidentally make mistakes or break the law, you could face serious financial and other consequences.

Many of our clients are people who find themselves in hot water because they did not understand the duties of an attorney. Financial elder abuse is sadly all too common, and attorneys should ensure that they take steps to avoid or defend against such allegations. In these cases, being proactive is much better than being reactive.

So for those just getting started, here is an overview of some of the duties of attorneys as set out in the Substitute Decisions Act:

  • Review the POA carefully (seek advice from a professional if there are ambiguities)
  • Exercise your duties in good faith
  • Explain your duties to the "incapable person"
  • Consult from time to time with supportive family members and friends of the "incapable person"
  • Keep detailed accounts of all transactions (the law specifies what kinds of records you must keep - and note that you may be asked to produce them at a later date)
  • Encourage the "incapable person" to participate, to the best of his or her abilities, in decisions you are making on his or her behalf (but this does not mean you defer to that person's judgement)
  • Document document document (did I mention you should document?)
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